Before SWAN, WATERMAN and MOORE, Circuit Judges.
After trial before Judge Bryan, a jury having been waived, the defendants were convicted, and each was sentenced to imprisonment in a federal penitentiary for a period of 20 years on each count of the three count indictment, the sentences to run concurrently. Each defendant has appealed. Their appeals challenge the sufficiency of the evidence to support the convictions and raise several points of law requiring discussion.
In making its case the Government relied upon testimony of agents of the Federal Bureau of Narcotics. Neither defendant took the stand. The testimony of the Government witnesses is substantially undisputed as to the substantive offenses.
A. THE SUBSTANTIVE COUNTS
Cimino's guilt of the two substantive offenses alleged in the indictment was so clearly established that a very brief statement of the testimony will suffice. In Brooklyn, on the morning of November 10, 1960, Cimino was introduced to Agent Avant by a "special employee" of the Federal Bureau of Narcotics by the name of Saul Scott, who was not produced as a witness. Cimino, Scott and Avant drove in the latter's automobile to Manhattan and on the way Avant began negotiations with Cimino for the purchase of a quarter kilo of heroin. Cimino said he would have to consult his source, Joe Z; he added that he could not fix a price, but that it would probably be between $3,600 and $4,200. Avant never saw Joe Z but other agents identified him as D'Ercole. Purchase of the heroin was completed in Manhattan between Avant and Cimino during the night of November 10. A second purchase of the same quantity of heroin, following a similar factual pattern, was completed between them on the night of November 22, 1960.
Whether the evidence as to D'Ercole was insufficient, as he argues, to support his conviction on the substantive counts, we need not determine because a holding of insufficiency would be of little avail to him if his conviction on the conspiracy count is sustained, since the sentence on this count was also 20 years. However, it may be noted that the Avant-Cimino-D'Ercole conversation discussed under the conspiracy count may well have been sufficient to establish that D'ERCOLE WAS IN A POSITION OF CONTROL AND HENCE, AN IMPUTED PARTICIPANT IN THE SALES. Cf. United States v. Moia, 2 Cir., 251 F.2d 255.
Count 3 of the indictment charges that from January 18, 1960 to the date of filing the indictment [September 5, 1962] the defendants "and others to the Grand Jury unknown" unlawfully conspired to violate §§ 173 and 174 of Title 21 United States Code. The alleged overt acts were (1) that Cimino met with D'Ercole on November 10, 1960; (2) that on the same date Cimino "delivered a quantity of narcotics";*fn1 and (3) that on November 22, 1960 Cimino met with D'Ercole.
Witnesses for the prosecution proved the meetings between Cimino and D'Ercole on November 10 and 22 but no witness overheard their conversations or saw anything passed from one to the other. Their mere meeting was no evidence of their being conspirators; nor was Cimino's statement to Avant that Joe Z was "the source" of the heroin sold by Cimino competent evidence against D'Ercole. "Otherwise, hearsay would lift itself by it own bootstraps to the level of competent evidence." See Glasser v. United States, 315 U.S. 60, 74-76, 62 S. Ct. 457, 86 L. Ed. 680.
The evidence relied upon by the Government is an incident which occurred on December 7, 1960. At about noon on that date Avant and Cimino met at Benny's Luncheonette in Manhattan and negotiated for a third purchase which was never completed. Avant expressed a desire to meet Joe Z and Cimino suggested that he telephone Joe Z at LE 4- 9197 at 3 o'clock that afternoon; Avant made the call and it was answered by Cimino whose voice Avant recognized. Avant then asked to speak with Joe Z and a different voice replied "This is Joe Z" and added "Give Johnny [Cimino] the money as you have done previously on your other two purchases. Everything will be all right. The quality and quantity of the stuff will be about the same. Later on we can meet and have dinner and discuss the price on future purchases." Agent Costa, who was surveilling the premises where LE 4-9197 was located, Gus' restaurant, testified that at about 3 P.M. on December 7, 1960, he saw Cimino enter the telephone booth. D'Ercole reentered the booth.
Judge Bryan convicted both defendants on the conspiracy count. In so doing it is obvious that he believed Avant's testimony as to what D'Ercole said on the telephone and Costa's testimony that D'Erocle was using the telephone at the time Avant talked with the voice which said "This is Joe Z." The Avant-Cimino-D'Ercole admission from D'Ercole's own lips - of his complicity in the transactions on November 10 and 22. Although it is true as D'Ercole argues that the trial judge had to make certain deductions from the proof, nevertheless Costa actually saw D'Ercole enter the telephone booth when Cimino came out and saw Cimino re-enter after D'Ercole left. This was sufficient to establish D'Ercole as the owner of the voice. See United States v. Kahaner et al., 2 Cir., 317 F.2d 459 (April 25, 1963) footnote 4; 72 Harv.L.Rev. 920, 987.
Several of the points raised on the appeal are asserted by both appellants. The first of these poses an interesting problem of alleged conflict between the "Jencks Act," 18 U.S.C. § 3500, and the normal rule excluding evidence of a defendant's prior criminal record when he does not take the stand in his own defense or raise an issue as to his character. The problem arose early in the trial with respect to a document marked as Court's Exhibit 16 for Identification. This was a report made by Agent Costa, a witness for the prosecution, which the defendants asked to have produced under the Jencks Act. It contained inter alia a record of the defendants' prior criminal convictions. The trial judge read the Exhibit to determine its producibility under § 3500, and said that it contained matter which would have been grounds for a mistrial had it been called to the attention of a jury, but that he would not consider the non-evidentiary material but would decide the case "solely on the evidence." Each defendant then moved for a mistrial. Their motions were denied.
The appellants contend that the trial court's examination of the Exhibit was an error which entitles them to a new trial. This claim is premised on the notion that even in a non-jury case, any judge sitting as trier of the facts, cannot fail to be biased by knowing of a defendant's prior criminal record.*fn2 They suggest that such knowledge could have been avoided if the prosecutor had excised the prejudicial material before the Exhibit was handed to the judge for examination pursuant to § 3500. To require, or even to condone, selective disclosure to the court of statements requested under § 3500 would, in our opinion, run counter to the admonitions of this Court in United States v. Aviles, 2 Cir., 315 F.2d 186. Moreover, if it is to be presumed that a jury will pay no attention to evidence brought out and ordered stricken or to evidence which the jury is instructed to disregard, it is even more reasonable to trust a judge to ignore non-evidentiary matter. We hold that the motions for mistrial were properly denied.
Appellants also urge that it was error to try them while the Government informer, Saul Scott, was unavailable as a witness; D'Ercole argues, in the alternative, that a continuance should have been granted to permit further search for Scott. No case of which we are aware has held that mere failure of production is reversible error, where diligent search for the special employee has been made. Roviaro v. United States, 353 U.S. 53, 77 S. Ct. 623, 1 L. Ed. 2d 639, requires only that the Government identify its informant; the duty does not extend to production, Williams v. United States, 9 Cir., 273 F.2d 781, 795-796, cert. denied 362 U.S. 951, 80 S. Ct. 862, 4 L. Ed. 2d 868; Eberhart v. United States, 9 Cir., 262 F.2d 421, 422. There was no error in proceeding to trial without the missing witness. The granting of a continuance ...